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Case: 14-10957

Date Filed: 12/01/2014

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS


FOR THE ELEVENTH CIRCUIT
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No. 14-10957
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20537-DLG-1

UNITED STATES OF AMERICA,


Plaintiff-Appellee,
versus
JOSE RAFAEL MARTE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 1, 2014)
Before TJOFLAT, WILSON and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:

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Jose Marte appeals his sentence of 97 months of imprisonment that was


imposed after he pleaded guilty to possessing with intent to distribute 11 grams of
3,4-methylenedioxy-N-methylcathinone (methylone). 21 U.S.C. 841(a)(1); 18
U.S.C. 2. Marte argues that the district court clearly erred in determining the base
offense level for his offense. We affirm.
Methylone is a Schedule I drug, 21 C.F.R. 1308.11(d)(47), but it is not
included in the Sentencing Guidelines drug quantity table, see United States
Sentencing Guidelines Manual 2D1.1(c) (Nov. 2013). As a result, the base
offense level for methylone is computed using the marijuana equivalency of the
most closely related controlled substance that is listed in section 2D1.1(c). Id. cmt.
n.6. To determine what controlled substance in the drug table is most closely
related, the district court is required, to the extent practicable, to consider three
kinds of information: (1) [w]hether the controlled substance not [listed] . . . has a
chemical structure that is substantially similar to a controlled substance referenced
in section 2D1.1(c); (2) [w]hether the controlled substance not [listed] . . . has a
stimulant, depressant, or hallucinogenic effect on the central nervous system that is
substantially similar to . . . [the] effect[s] . . . of a controlled substance referenced
in section 2D1.1(c); and (3) [w]hether a lesser or greater quantity of the
controlled substance not [listed] . . . is needed to produce a substantially similar

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effect on the central nervous system as a controlled substance referenced in


section 2D1.1(c). Id.
The district court did not clearly err in finding that methylone was most
closely related to MDMA for purposes of determining Martes base offense level.
Undisputed testimony from Dr. Cassandra Prioleau, a pharmacologist for the Drug
Enforcement Agency, established that the Agency used a widely accepted
methodology to determine that methylone is most related to MDMA; methylone,
like MDMA, acts as a stimulant on the central nervous system; and methylone is
half as potent as MDMA. The district court was entitled to find that methylone was
most closely related to MDMA based on the shared characteristics of the two
controlled substances. Because one gram of MDMA is equivalent to 500 grams of
marijuana, the district court reasonably determined that one gram of methylone
was equivalent to 250 grams of marijuana and then applied that ratio to calculate
Martes base offense level.
Marte challenges the decision on two grounds, both of which fail. First,
Marte argues that the government failed to prove that methylone has a chemical
structure that is substantially similar to MDMA, but Prioleau explained that the
Agency determined the relationship between methylone and MDMA by
evaluat[ing] . . . chemical structure. In any event, the commentary to section
2D1.1 does not impose a duty on the government to produce evidence about every
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Case: 14-10957

Date Filed: 12/01/2014

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feature of a controlled substance; instead, it instructs the district court to consider


the features to the extent practicable. U.S.S.G. 2D1.1 cmt. n.6. Second, Marte
argues that methylone should be treated as a Schedule I or II depressant that has a
more favorable 1:1 ratio to marijuana, but the substance is classified in the
regulations as a Schedule I hallucinogenic, 21 C.F.R. 1308.11(d)(47).
We AFFIRM Martes sentence.